A person may find themselves facing criminal prosecution following participation in a crime that, for one reason or another, was not completed. Simply relying on the fact that the crime was not completed as a defense will not result in success, as failing to successfully commit a crime can be a crime itself.

As with any criminal offense, the government would be required to prove each element of the crime beyond a reasonable doubt. The elements of the crime of attempt are as follows:

1. Intent to commit a crime

2. The taking of a substantial step in committing the crime, and

3. Failing to commit the crime intended

Note that the third element above protects an individual from being convicted of both a

crime and its attempt. For example, an individual could not be convicted for attempting to kill and killing a specific person.

Therefore, in constructing a defense to an attempt crime, attention is focused on the first two elements above. An example is the argument that the alleged crime would not have been a crime. Another example is arguing that the government cannot prove your intent beyond a reasonable doubt.

In South Carolina, in addition to the basic offense of attempt, criminal laws also establish attempt offenses specific to certain criminal acts. The most glaring example is the crime of Attempted Murder. Another example is found in South Carolina’s drug offense laws. S.C. Code Ann. § 44-53-420 reads as follows:

“(A) Except as provided in subsection (B), a person who attempts or conspires to commit [a drug-related offense], upon conviction, [shall] be fined or imprisoned in the same manner as for the offense planned or attempted; but the fine or imprisonment shall not exceed one half of the punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

(B) A person who attempts to possess a substance made unlawful by the provisions of this article is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than thirty days, or both.”

Attorney Kirk Truslow's practice focuses solely on criminal defense in State and Federal Courts. In practice for thirty years, Truslow has successfully defended many cases in State and Federal Court, and has served as lead counsel in many State and Federal Court jury trials. If you are being investigated or have been charged with a criminal offense, contact attorney Kirk Truslow at 843.449.3304 or at